# Petition — Croatan Books, Inc. v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1520%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 972 ## Text 8021601 Office-Supreme Court, U.S. FILED No. MAR 28 1981 ALEXANDER L. STEVAS, CLERK IN THE Suprene Court of the United States OCTOBER TERM, 1980 CROATAN Books, INC., Petitioner, V. COMMONWEALTH OF VIRGINIA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE CERCUIT COURT OF FAIRFAX COUNTY, VIRGINIA ROGER C, SPAEDER ROGER E. ZUCKERMAN RONALD R. MASSUMI ZUCKERMAN, SPAEDER, TAYLOR & KOLKER 1800 M Street, N.W. Suite 375 North Washington, D.C. 20086 202/223-8606 Counsel for Petitioner one saeaneniiahentiinel WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001 ’% QUESTIONS PRESENTED FOR REVIEW . Whether a jury forced to view allegedly obscene films three at a time can properly apply the test for ob- scenity and evaluate each film “as a whole?” ; . Whether a warrant which necessarily results in a prior restraint on the dissemination of material presump- tively protected by the First Amendment because it authorizes seizure not only of films allegedly obscene, but also of projectors and other equipment necessary to carry on first amendment activities, is overbroad and constitutionally invalid. (i) e% TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ................ (i) OPINIONS DELIVERED BELOW .......00000000 0... 1 PPT UREITIT sondtinccinteibicncithinapcebecuiceiaeccidianininndise ccd 1 CONSTITUTIONAL PROVISIONS INVOLVED ........ 1 STATEMENT OF THE CASE ..000o..o...cccccccceceecececceoees 2 REASONS FOR ALLOWING THE WRIT .................. 4 I. A Jury Forced to View Three Films at a Time Cannot Evaluate Each Film in Conformity with the Constitutional Test for Obscenity ................ 4 II. A Search Warrant Which Affronts the First Amendment by Creating an Unlawful Prior Re- straint is Overbroad and Must be Remedied by Suppression of All the Fruits of the Search RA RT ST a Sh TT 7 PNT UTTI. stcicensceyisininsipetnetiincsinsmstiissabisienssiachitihassnilasidbaanaaniniieh la (iii) PRECEDING PAGE WAS BLANK | iv TABLE OF CASES Page Application of Lafayette Academy, Inc., 610 F.2d BR, BRR Ee NOLS ON On 11 Bongiovanni Vv. Hogan, 309 F. Supp. 1864 (S.D. en OD cece ath intr tiitingianccldednpalippobntiivebiiednctiteasbiinins 8 Bourland v. State, 502 S.W. 2d 8 (Tex. Crim. App. | PARE Rene es 2S RS eR ERRNO ONe Ra 5 Bryers v. State, 480 S.W. 2d 712 (Tex. Crim. RTE eck dene ech itinicnsoidatinn to ddmakbibnaincnes 5 Cambist Films, Inc. v. Duggan, 298 F. Supp. 1148 (W.D. Pa.), rev’d on other grounds, 420 F.2d Ue RO I IE cl Gai ae 5 Cinema Classics, Ltd. v. Busch, 389 F. Supp. 43 (C.D. Cal.), aff'd, 409 U.S. 807 (1972) ............ 7 Eagle Books, Inc. Vv. Reinhard, 418 F. Supp. 345 (N.D. Ill. 1976), vacated on other grounds, 482 eae AE ND Sikri neta cis rncin a eislidiaadcdaninebind 7 Europo Books, Inc. v. Pomerleau, 41 Md. App. 114, 395 A.2d 1195 (Md. Ct. Spec. App. 1974)... _ 7,8 Haldeman v. United States, 340 F.2d 59 (10th Cir. RRM lor PU Se EEN 2 PNT SOP lt CC 5 Hanley v. State, 479 F.2d 486 (Alaska 1970) ........ 5 Heller v. New York, 418 U.S. 488 (1978) ............ 10 Hosey V. City of Jackson, 309 F. Supp. 527 (S.D. Miss. 1970), vacated on other grounds, 401 U.S. GE ied cop descent a ninar ah ca acted aecsacanidles 5 In re Louisiana News Co., 187 F. Supp. 241 (E.D. HMI HEU. crnscenercinngeccridiciddeaicinpisinipicatbatiicabia tbseinnadaeliig eis 5 Lo-Ji Sales, Inc. v. New York, 442 U.S. 819 | ER a Pe walnie Soe OEM SAN Ra RINT A 11 Maguin Vv. Miller, 483 F. Supp. 228, (D. Kan. MINIS sii chinichucsniiace bnientiacessidendiinanaanaecetibaden ices padiceaStsuspces 7 Marcus V. Search Warrant, 367 U.S. 717 (1961).. 10 McKinney Vv. Tuscaloosa, 268 So. 2d 488 (Ala. | RARER apr A. GER ST ar a 5 Miller v. California, 418 U.S. 15 (1978) ...00000.... 4,5,6 Near V. Minnesota, 238 U.S. 697 (1981) 2.00000... 11 People v. New Horizons, Inc., ——- Colo. ——, 616 ee I OE ecchtaicsieiesacniceteiesniccasciainie 5 Vv TABLE OF CASES—Continued Playboy Publications, Inc. v. McAuliffe, 610 F.2d 1854 (5th Cir.), cert. dismissed, US. —, 100 8. Ct. 3031, 65 L. Ed. 2d 1181 (1980) ......... Porno, Inc. Vv. Municipal Court, 38 Cal. App. 3d 122, 108 Cal. Rptr. 797 (Cal. Ct. App. 1978).... Regina v. Hicklin, L.R. 3, Q.B. 8360 (1868) .......... Roth v. United States, 354 U.S. 476 (1957) .......... United States v. Burch, 482 F. Supp. 961 (D. Del. 1977), aff'd mem., 577 F.2d 729 (1978) ............ United States v. Polak, 312 F. Supp. 112 (E.D. Pa. BONERS ETA ata SP see eA ec eee United States v. Roche, 614 F.2d 6 (1st Cir. 1980)... United States v. Tupler, 564 F.2d 1294 (9th Cir. RAR UTR PENANG ec ey United States v. West Coast News Co., 228 F. Supp. 171 (W.D. Mich. 1964), aff’d, 357 F.2d 855 (6th Cir. 1966), rev’d on grounds sub nom. Aday v. United States, 388 U.S. 447 (1967)... Universal Amusement Co., Inc. v. Vance (Ellwest Stereo Theatre, Inc. v. Byrd), 404 F. Supp. 33 NY I I thie al oss asiecivatcnnamnieniesenatnetiioonhientl 7, 8,9, 10 Zenith International Film Corp. Vv. City of Chicago, 201 F.2d 785 (7th Cir. 1961) ............................... ry IN THE Supreme Court of the United States OCTOBER TERM, 1980 No. CROATAN Books, INC., ‘ Petitioner, COMMONWEALTH OF VIRGINIA, Respondent.* PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA OPINIONS DELIVERED BELOW The judgment of the Circuit Court of Fairfax County appears in the appendix hereto. The order of the Virginia Supreme Court, dated January 21, 1981, declining to is- sue a writ of certiorari to the Circuit Court of Fairfax appears in the appendix hereto. In addition, the ap- pendix includes relevant oral rulings of the General Dis- trict Court of Fairfax County. JURISDICTION This Court’s jurisdiction is invoked under 28 U.S.C. § 1257(38). CONSTITUTIONAL PROVISIONS INVOLVED The fourteenth amendment to the United States Con- stitution, which provides in relevant part: . . nor shall any State deprive any person of life, liberty or property without due process of law. The first amendment to the United States Constitution, which provides in relevant part: 1 Caption lists all parties. ' 2 Congress shall make no law . . . abridging the free- dom of speech, or of the press... The fourth amendment to the United States Constitu- tion, which provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, sup- ported by oath or affirmation, and particularly de- scribing the place to be searched, and the persons or things to be seized. STATEMENT OF THE CASE Petitioner Croatan Books, Inc., is engaged in the sale and rental of sexually oriented films, books and magazines at a store located in Fairfax County, Virginia. On Jan- uary 24 and March 8, 1979, petitioner’s place of business was the subject of raids, pursuant to warrant, conducted by county Vice Squad officers. The warrants authorized the seizure of numerous short films from private projec- tion booths, along with projectors and other projection equipment, coin boxes and advertising placards. The raids unnecessarily caused such damage to Croa- tan’s facilities as to prevent continued exhibition of other films or of copies of the seized films. Officers seized coin boxes by prying them off the walls with a crowbar. They seized projectors, screens and mirrors used for projection, and on the March 8 raid, they seized advertising placards by taking the projection booth doors to which they were affixed. The raids were conducted in a needlessly obtru- sive manner: large numbers of officers, including police photographers, roamed through the premises; patrons were informed that they could enter or remain only if they presented identification. At a suppression hearing in the General District Court of Fairfax County, Virginia, Croatan argued that all the evidence must be suppressed because the raids had ’% 3 been conducted in violation of the first and “‘ourth amend- ments. The General District Court declined to suppress the films but ordered the return of all property, save one projector, one coin box and one placard. Although re- fusing to suppress, the court strongly denounced the way in which the searches had been conducted, the size of the raiding parties, the solicitation of customer identification and the magnitude of the seizures. At a trial de novo in the Circuit Court of Fairfax County the suppression issue was reviewed on the basis of Croatan’s legal memorandum and on the record of the suppression hearing before the General District Court. The Circuit Court denied Croa- tan’s motion to suppress. Prior to the trial de novo in the Circuit Court, Croatan requested that the 42 counts of renting obscene material be severed in order that a single jury be required to view no more than ten or fifteen films. Croatan believed that subjecting a jury to the overwhelming task of consider- ing forty-two films shown each in its entirety would be so exhausting and irritating that the jury would be un- able to give each a fair and conscientious viewing.” The court, however, proposed its own solution to the problem. The jury would be shown three films simultaneously, thereby reducing the viewing time by two-thirds. Croatan vigorously resisted this suggestion and renewed its re- quest for severance, contending that the test for obscenity, requiring as it does that the work in question be “taken as a whole,” could not properly be applied by a jury forced to consider films three at a time. The court still refused to permit severance. After Croatan entered pleas of guilty as to ten of the films, the remaining thirty-two were shown on a courtroom wall utilizing three projec- tors running simultaneously. The jury ultimately returned verdicts of guilty as to twenty of the thirty-two films. 2 The viewing in the first trial in the General District Court had taken nearly eight hours. 4 REASONS FOR ALLOWING THE WRIT I. A Jury Forced to View Three Films at a Time Cannot Evaluate Each Film in Conformity with the Constitu- tional Test for Obscenity The sole contested issue at trial was whether the seized films appealed to a “prurient interest” in sex. Croatan introduced the extensive expert testimony of Dr. Law- rence Donner, a psychologist specializing in the study of sexual behavior and associate professor of clinical psy- chology at the University of Maryland School of Medi- cine. Dr. Donner testified that in his opinion none of the films appealed to a “prurient,” i.e., a sick, morbid or shameful interest in sex, but rather appealed to a normal and healthy erotic interest in sex. The State countered with the testimony of lay witnesses from the community. In determining whether the dominant theme or pur- pose of a film is an appeal to the prurient interest, a jury must consider the film as a whole and not base its judg- ment on isolated portions or scenes. Miller v. California, 413 U.S. 15, 24 (1978). In the landmark case of Roth v. United States, 354 U.S. 476, 489 (1957), this Court disposed of the notion that obscenity can be judged on the basis of isolated excerpts and held that the determina- tion of obscenity must proceed from a consideration of the material “taken as a whole.” The current standard for obscenity, the so-called “Miller test,” examines (a) whether “the average person, applying contem- porary community standards” would find that the work, taken as a whole, appeals to the prurient in- terest . . .; (b) whether the work depicts or de- scribes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks ser- ious literary, artistic, political, or scientific value. Miller, 413 U.S. at 24 (emphasis added). | 5 An isolated segment of a film, book or magazine can- not constitutionally provide either probable cause for an obscenity arrest® or the foundation for an obscenity conviction.* When the obscenity of a motion picture is in issue, the factfinder must view the entire film in order to make a proper determination." Failure to do so must vitiate the finding of obscenity.* In this case, Croatan focused its entire argument upon the first prong of the Miller test, seeking to establish in %See United States v. Tupler, 564 F.2d 1294, 1297 (9th Cir. 1977) ; Hosey v. City of Jackson, 309 F. Supp. 527, 584 (S.D. Miss. 1970), vacated on other grounds, 401 U.S. 987 (1971) ; Cambist Films, Inc. v. Duggan, 298 F. Supp. 1148, 1152 (W.D. Pa.), rev'd on other grounds, 420 F.2d 687 (3d Cir. 1969) ; Hanley v. State, 479 P.2d 486, 493 (Alaska 1970). * See, e.g., Playboy Publications, Inc. v. McAuliffe, 610 F.2d 1354, 1369 (5th Cir.), cert. dismissed, —— U.S. —, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980) (while certain parts of a magazine if considered separately would be obscene, the magazine may turn out to be not obscene when considered as a whole) ; In re Louisiana News Co., 187 F. Supp. 241, 246 (E.D. La. 1960) (one objectionable picture cannot render entire publication obscene) ; People v. New Horizons, Inc., —— Colo. ——, 616 P.2d 106 (Colo. 1980) (statute unconstitutional which would allow magazine consisting of words and pictures to be declared obscene on the basis of the pictures alone without reference to text or accompanying articles). 5 See Haldeman v. United States, 840 F.2d 59, 62 (10th Cir. 1965) ; Zenith International Film Corp. v. City of Chicago, 291 F.2d 785, 789 (7th Cir. 1961); United States v. West Coast News Co., 228 F. Supp. 171, 178 (W.D. Mich. 1964), aff'd, 357 F.2d 855 (6th Cir. 1966), rev’d on other grounds sub nom. Aday v. United States, 388 U.S. 447 (1967); Bourland v. State, 502 S.W.2d 8, 9 (Tex. Crim. App. 1978); Bryers v. State, 480 S.W. 2d 712, 717-19 (Tex. Crim. App. 1972) ; McKinney v. Tuscaloosa, 268 So. 2d 488, 492 (Ala. 1972). *For example, in Zenith International Film Corp. v. City of Chicago, 291 F.2d 785, 789 (9th Cir. 1961), the court overturned an obscenity conviction where the factfinder “failed to view the film as a whole and thus could under no circumstances apply the proper standard of obscenity.” 6 the minds of the jury a distinction between material which appeals to a “prurient” interest in sex and that which appeals merely to the perfectly normal, healthy erotic interest in sex. That is a distinction subtle enough to challenge a jury’s discrimination even in the best of circumstances. It is too much to expect that any jury confronted with three films projected simultaneously upon the courtroom wall can somehow perceive each “as a whole,” fix each in mind and memory, and then ac- curately sort through the afternoon’s jumble of cinematic impressions in order to separate the obscene from the protected. The simultaneous screening forced the jurors to turn from film to film, able to concentrate on only a portion of each at a time or perhaps, when attention waned, to let vision fall passively upon some one of the three. What- ever the case, it is plain that no juror could have viewed all of every film, and therefore none could judge each film as a whole. In light of Roth and Miller, there is simply no alterna- tive to viewing each film in its entirety and judging each as an integral whole. The procedure adopted here under- mines a basic tenet of first amendment jurisprudence namely: that a work is obscene, if at all, by virtue of its entire content, not by virtue of some particular, iso- lated part. To permit, as here, a trial court to impose a procedure which precludes any possibility that disputed films can be judged in their entirety would be, in prac- tical effect, to sanction a return to the days of Regina v. Hicklin, L.R. 3, Q.B. 360 (1868), when it was thought proper to judge obscenity by viewing only isolated ex- cerpts of a work. To protect the vitality of the Roth- Miller approach and to assure that trial courts exercise utmost vigilance in assuring that trial procedures do not undermine the most basic principle of those seminal cases, the requested writ should issue. *% 7 II. A Search Warrant Which Affronts the First Amend- ment by Creating an Unlawful Prior Restraint is Over- broad and Must be Remedied by Suppression of All the Fruits of the Search and Seizure The warrants in this case provided for the seizure not only of particular items alleged to be obscene, but also for the seizure of non-criminal viewing equipment. The January warrant authorized the seizure of fifteen pro- jectors, fifteen coin boxes and various advertising pla- cards, in addition to twenty films. Similarly, the March warrant permitted the seizure of thirty coin boxes, ten screens and ten mirrors used in projection. The removal of these items of equipment caused considerable damage to the premises, and during one of the raids police officers were obliged to take projector booth doors in order to seize advertising placards affixed to them. By authorizing the seizure of viewing equipment, the warrants condoned an unlawful prior restraint.? The taking of the equipment interfered with Croatan’s ability to continue disseminating presumptively protected mate- rial. The warrants fail because they go beyond the power to seize allegedly obscene material and purport to em- power the authorities “to seize the instrumentalities so that they cannot be used to disseminate any speech at all.” United States v. Polak, 312 F. Supp. 112, 116 (E.D. Pa. 1970). As one court has put it, the state has no more right to seize the projector because the film is ob- jectionable than it would have “to seize the printing See Eagle Books, Inc. v. Reinhard, 418 F. Supp. 845 (N.D. Ill. 1976), vacated on other grounds, 432 U.S. 902 (1977) ; Cinema Classics, Ltd. v. Busch, 389 F. Supp. 43 (C.D. Cal.) ; aff’d, 409 U.S. 807 (1972); Maguin v. Miller, 483 F. Supp. 223, 230 (D. Kan. 1977) ; Universal Amusement Co., Inc. v. Vance (Ellwest Stereo Theatre, Inc. v. Byrd), 404 F. Supp. 33, 51-57 (S.D. Tex. 1975); United States v. Polak, 312 F. Supp. 112 (E.D. Pa. 1970); Europo Books, Inc. v. Pomerleau, 41 Md. App. 114, 395 A.2d 1195 (Md. Ct. Spec. App. 1979). presses because the newspaper contains patently obscene matter.” * Europo Books, Inc. v. Pomerleau, 41 Md. App. 114, 395 A.2d 1195 (Md. Ct. Spec. App. 1979). In cases where there has been a seizure of the instru- ments needed for distribution of presumptively protected material, the government typically argues that they were seized as evidence and instrumentalities of the crime. Such an argument must fail;* the evidentiary value of projectors, for example, at an obscenity trial is minimal at best, but the effectiveness of such a seizure in restrict- ing expression is substantial: *° ® The court in Polak, 312 F. Supp. at 116, stated the issue even more emphatically. The government had sought to justify seizure of a mail order house’s copiers and business machines. It argued that the machines were instrumentalities of the crime of using the mails to distribute obscene matter. The court gave the argu- ment short shrift: If the Government’s argument on this point is accepted, they would be permitted to seize and retain the printing presses of a large metropolitan newspaper if a single commercial adver- tisement were determined to be obscene. The next step would be to seize a television network on the ground, perhaps, that its instrumentalities were used in the dissemination of an obscene film. The scope of the power asserted is almost limit- less. To permit the G.vernment by this device to seize the very instrumentalities of speech would effect a much more drastic suppression of the opportunities of expression than any of the prior restraints which have been heretofore considered and condemned by the United States Supreme Court. * Cases which have considered and rejected such an argument include Universal Amusement Co., Inc. v. Vance (Ellwest Stereo Theatre, Inc. v. Byrd), 404 F. Supp. 38, 51-57 (S.D. Tex. 1975); United States v. Polak, 312 F. Supp. 112 (E.D. Pa. 1970): Bon- giovanni Vv. Hogan, 309 F. Supp. 1364 (S.D.N.Y. 1970); Europo Books, Inc. v. Pomerleau, 41 Md. App. 114, 118, 395 A.2d 1195, 1198 (Md. Ct. Spec. App. 1979); Porno, Inc. v. Municipal Court, 83 Cal. App. 3d 122, 108 Cal. Rptr. 797 (Cal. Ct. App. 1973). 10 As was said in Europo Books, 41 Md. App. at 1198, 395 A.2d at 118: 9: The State claims . . . that all it was attempting to do was to gather evidence for the trial of obscenity cases and the instruments used in the business were evidence of the crime. Certainly, projection equip- ment, coin boxes, stools, and portions of booths would not be relevant evidence in the trial of a case alleg- ing commercial exhibition of obscene materials. Proof of the obscenity would seem to rise or fall with the material exhibited, not with equipment used to ex- 4 hibit the materials. .. . In a case which does not involve the first amendment, this court might accept the “evidence” argument ....+ It is too tenuous, however, when placed in the light of the first amendment. ... Whether intentional or not, and we need not make such a finding here, [the seizures] served to curtail the operation of the business. ‘ Universal Amusement (Ellwest), 404 F. Supp. at 54-55. Seizures of the sort encountered here make it physi- cally and financially unfeasible for exhibitors to carry on with their business. It is precisely because of their im- pact upon the free dissemination of presumptively pro- tected materials that they must be condemned as prior restraints. Motion pictures are protected by the first amend- ment. Only if they are judicially judged to be ob- scene, using the guidelines set forth by the Supreme Court, do they cease to be protected by the first The theory advanced by the State for the seizure of the projectors is that they are “evidence of the crime” of showing unlicensed motion picture film. Why the film, itself, coupled with the testimony of the officer that it had been exhibited, would not suffice is unexplained. Neither is there an expla- nation as to how the projector adds to the State’s proof or in any manner strengthens the State’s case. We believe the State had no more right to. seize the pro- jector ... than it would. . . to seize the printing presses because the newspaper contains patently obscene matter. 7% 10 amendment. While it is true that the showing of a motion picture can be a crime, it is not a crime until it has been judicially determined to be so. This fact takes motion picture obscenity cases out of the realm of crimes such as gambling. A gambler may have a business and he may utilize gambling machines and instruments to carry on his business. The police... may come in with a search warrant and seize all of his equipment, effectively shutting down his business. Such a case would not disturb a court for one reason: the gambler does not have any protections which fall outside the due process requirements of a state’s criminal laws. The adult motion picture proprietor, however, . .. has an added protection—the protec- tion of the first amendment. Until the items which he shows are each proved obscene, he can show any- thing he wants to show. The police cannot shut down or attempt to shut down his business. Universal Amusement (Ellwest), 404 F. Supp. at 54. The scope, purpose and method of searches and seizures of material presumptively protected by the First Amend- ment must be analyzed with special rigor. Marcus v. Search Warrant, 367 U.S. 717, 731 (1961). In par- ticular, seizure of specific films for the bona fide purpose of obtaining evidence for a criminal proceeding must be distinguished from a seizure which is aimed at, or has the effect of, actually blocking the continued distribution or exhibition of presumptively protected matter which has not yet been subject to a judicial determination of obscenity. Heller v. New York, 413 U.S. 488, 492 (1978). A seizure of the latter type is an impermissible prior restraint. Marcus, 367 U.S. at 736. The scope of the warrant, as well as the procedures utilized in executing it, must be structured so as to ensure that the distribu- tion of protected material is not stifled. If a warrant, when executed in accordance with its terms, naturally and necessarily creates a prior restraint, 1l then that warrant fails for overbreadth and is uncon- stitutional on its face. When a seizure is made pursuant to a warrant which is overbroad, the appropriate remedy is suppression of all the property seized. See, ¢.g., Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); United States v. Roche, 614 F.2d 6 (1st Cir. 1980) ; Application of Lafayette Academy, Inc., 610 F.2d 1 (1st Cir. 1979) ; United States v. Burch, 482 F. Supp. 961 (D. Del. 1977), aff'd mem., 577 F.2d 729 (1978) .™ The long-standing American aversion to prior re- straints became a keystone of first amendment theory with the Supreme Court’s decision in Near v. Minnesota, 238 U.S. 697 (1931). No matter what form they take, prior restraints are utterly inimical to first amendment values. In the instant case, needlessly overbroad war- rants created a prior restraint. To remedy that first 11 The cases cited deal with “general warrants.” The purpose of the fourth amendment particularity requirement is to prevent the seizure of unoffending or irrelevant items. In one sense, the problem posed by the warrants at issue in this case is com- parable to the general warrant situation: the projection equip- ment seized was (1) “unoffending” since there is no criminality attached to possession of such equipment, and (2) “irrelevant” since, as explained in the text accompanying notes 9-10, the equipment would be of little evidentiary value in prosecuting an obscenity violation. However, the problem here lies beyond the resolving power of these purely fourth amendment categories. Even if the warrants appeared to be valid in terms of the fourth amendment particu- larity requirement, it would nonetheless be true that their execution would result in an impermissible prior restraint. The first amend- ment prior restraint problem, it is submitted, constitutes inde- pendent and sufficient grounds for holding the warrants invalid. Lo-Ji Sales, it should be noted, also involved the seizure of pro- jection equipment, but since the warrant there was so far short of traditional fourth amendment standards, the case could be re- solved on the basis of a straightforward fourth amendment analy- sis. Thus, Lo-Ji gave this Court no occasion to explore the inter- face between first and fourth amendment principles. 12 amendment injury and to deter similar violations in the future, the fruits of the searches and seizures authorized by those warrants should have been suppressed. The writ which petitioner seeks should therefor issue. Respectfully submitted, ROGER C. SPAEDER ROGER E. ZUCKERMAN RONALD R. MASSUMI ZUCKERMAN, SPAEDER, TAYLOR & KOLKER 1800 M Street, N.W. Suite 375 North Washington, D.C. 20036 202/223-8606 Counsel for Petitioner APPENDIX la APPENDIX CONTENTS OF APPENDIX AND EXPLANATORY NOTE set forth and explained as follows: 1. Order of the Supreme Court of Virginia Denying Writ of Certiorari to the Circuit Court of Fairfax County, January 21, 1981 .220..00o...eeecc cece eeeeeeeeeeeeeee Order Denying Defendant’s Motion to Suppress and Judgment of the Circuit Court of Fairfax Ie I Bi I isa shin ns scncecierensecdinsceteissectoonnone Relevant portions of the oral rulings of the Gen- eral District Court of Fairfax County concerning the suppression issue and denying defendant’s mo- tion to suppress, Transcript, December 17, 1979, pp. 74-77, (Conrad Waters, J.) .2...0......2ecccceecceeeeeeee As an aid to the Court, the contents of this Appendix are 8a * So as to conserve space, this appendix contains the order and judgment pertaining to one of the twenty films adjudged obscene. The order and judgment reproduced is representa- tive of, and except for the case number notation and amount of the fine specified, identical to each of the nineteen others rendered by the Circuit Court on May 22, 1980. ". 2a VIRGINIA: In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond on Wednesday the 21st day of January, 1981. Record No. 801322 Circuit Court Nos. 31295 through 31301, 31304, 31309 through 31311, 31314, 31317, 31319, 31321 through 31324, 31329 and 31330 CROATAN Books, INC., Appellant, against COMMONWEALTH OF VIRGINIA, Appellee. From the Circuit Court of Fairfax County Finding no reversible error in the judgments com- plained of, the court refuses the petition for appeal filed in the above-styled case. A Copy, Teste: ALLEN L. Lucy Clerk By: /s/ [Illegible] Deputy Clerk 8a. VIRGINIA: IN THE CIRCUIT COURT OF FAIRFAX COUNTY #81295 2 COMMONWEALTH OF VIRGINIA vs. CROATAN Books, INC. Appeal—Possession of an obscene film with intent to rent This 22nd day of May, 1980, came the Commonwealth, by her Attorney, and the Defendant, CROATAN BOOKS, INC., by its Counsel, Roger Zuckerman. Thereupon, the Court Reporter was sworn. Whereupon, the Court heard further argument on Counsel for the Defendant’s motion to suppress, which motion the Court denied. This case having come on this day for imposition of sentence, it is therefore, ADJUDGED and ORDERED that the Defendant pay a fine of $1,000.00 and the costs of this case. Whereupon, Counsel for the defendant made a motion to suspend payment of said fine pending an appeal, which motion the Court denied. /s/ [Illegible] Judge A Copy Teste: JAMES E. HOOFNAGLE Clerk [SEAL] By: /s/ Jessie M. Clarke Deputy Clerk ’> 4a, RELEVANT PORTIONS OF THE ORAL RULINGS OF THE GENERAL DISTRICT COURT OF FAIRFAX COUNTY CONCERNING THE SUPPRESSION ISSUE AND DENYING DEFENDANT’S MOTION TO SUPPRESS, TRANSCRIPT, DECEMBER 17, 1979, pp. 74-77 (Conrad Waters, J.) First of all, I find it was not a general warrant. The warrant itself, I find it was properly executed, both warrants.... & e a * . . . I’m denying all your grounds for suppressing the evidence seized, but I want to know whether those films can be taken off one projector and put on another, and, if so, my order is that all projectors but one, all coin boxes but one, be returned. No films. . The placards and doors, if pictures can be taken, it’s far better or of equal weight in my opinion to have the pic- tures and testimony going with those pictures than to have doors, or, in any event, keep one door with one placard, but I’m sure the testimony can go to the others hopefully, depending on what your case is like, your testimony could do the rest. I think that the volume coming out of these places to the point that I think it comes close to one of these cases where it’s shutting down the business, and there’s no outstanding order of a court that I know of to shut down their business; when that happens, then that’s what you do if you’re executing that order. So my ruling is that I deny the motion to suppress with the comments that I’ve made in the future, both as to the warrants, as to the people, as to where they go. I will grant the motion to return if it can be shown to me, and I would expect that somebody could do that, to- 5a day or whenever, that that film, continuous film, can be threaded into one spool, put in another, and, at that time, and I want every—you’ve got numbers of them, if you get numbers, brand names, photos, fine; then I think let’s return the projectors and the doors and mirrors and things like that that you have photographic evidence now, and I think with testimony that that will be sufficient. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1520%3A1. Public record. Not legal advice.